Freeport Area School Dist. v. Com. Human Relations Commission

• Decision Date: 08 April 1975
• Citation: 18 Pa.Cmwlth. 400,335 A.2d 873
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1327 FREEPORT AREA SCHOOL DISTRICT, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS COMMISSION, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 873

335 A.2d 873

18 Pa.Cmwlth. 400, 16 Fair Empl.Prac.Cas. (BNA) 1327

FREEPORT AREA SCHOOL DISTRICT, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS

COMMISSION, Appellee.

Commonwealth Court of Pennsylvania.

Argued Dec. 3, 1974.

Decided April 8, 1975.

Marshall, Marshall, McNamee & MacFarlane, Harry K. McNamee, James P. MacFarlane, Butler, for appellant.

Jay Harris Feldstein, Asst. Gen. Counsel, Pennsylvania Human Relations Commission, Feldstein, Bloom & Grinberg, Pittsburg, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS, and BLATT, JJ.

BOWMAN, President Judge.

The Freeport Area School District, located in Allegheny County, has appealed from an order of Pennsylvania Human Relations Commission upholding a challenge to the district's maternity leave policy. The Commission, after hearing, concluded that the policy in question offended section 5(a) of the Pennsylvania Human Relations Act ¹ which declares it unlawful for an employer to discriminate by reason of sex 'with respect to compensation, hire, tenure, terms, conditions or privileges of employment . . .,' ordered the district to make payments to four employes with respect to whose employment the policy had been applied, directed the district to alter its policy to conform to Commission regulations ² and to report to the Commission its actions with reference to the change of policy.

The district's maternity leave policy is embodied in a collective bargaining agreement effective August 30, 1971, negotiated by the district and the Freeport Education Association, the bargaining representative of professional employes, including the persons afforded relief by the Commission's order herein. Article XV of the agreement, entitled 'Unpaid Leaves of Absence' provides as follows:

'Maternity

Maternity leave shall be granted to an employee under the following conditions:

1. As soon as an employee becomes aware of her pregnancy, she shall, on the prescribed Board form, notify the Superintendent.

2. She may request maternity leave in writing up to 3 1/2 months prior to the estimated date of birth. In no event shall her employment continue during the 3 1/2 months immediately preceding the estimated date of birth.

3. Written application to the Superintendent for re-employment may be made any time within 3 months after the date of birth or other termination of pregnancy and said employee must be available for re-employment within 12 months after the date of notification of intent to resume employment.

4. Upon receipt of written application for re-employment, the Board shall offer her the same professional assignment she held before going on maternity leave or a substantially equivalent professional assignment, if said assignments are available. If said assignments are not available, the Board shall offer her any other available professional assignment for which she is certified until such time as the Board can, through established placement procedures, offer her the professional assignment she held before, or one substantially similar to it.'

On September i7, 1972, Linda Szul, a teacher in the district since 1969 and the complainant herein, being pregnant, applied for maternity leave, giving April 7, 1973, as the likely date of birth. Consonant with Article XV of the collective bargaining agreement, the district notified Mrs. Szul that her leave was to commence December 23, 1972, 3 1/2 months before the predicted date of birth. Preferring to work for as long as she was able, Mrs. Szul informed the Board that she desired to remain on the job through February 9, 1973, the date until which her doctor had advised that she could physically discharge her duties. The district refused this deviation from its policy.

On December 19, 1972, Mrs. Szul filed a complaint with the Human Relations Commission alleging discrimination on the basis of sex by reason of the arbitrary termination of her employment for pregnancy. On January 11, 1973, Mrs. Szul filed an amended complaint with the Commission additionally alleging that the district's policy 'has a discriminatory affect (sic) on the complainant and other females similarly situated because of their sex, female.'

The district's answer to the amended complaint averred that the 'rules and regulations in regard to maternity leave and are reasonable and non-discriminatory on the Complainant or any other females similarly situated.'

Prior to hearing and in response to a request by a Commission investigator, the district superintendent provided information as to termination dates, salaries, and other information concerning teachers other than Mrs. Szul who had been granted maternity leaves since 1969. At the hearing, in addition to the evidence given by Mrs. Szul, the Commission adduced the testimony of Karen Harrison, Mary Ippolito, and Darlaine Thompson, other district teachers who had taken maternity leaves. These persons did not file individual complaints with the Commission, did not formally join in the complaint filed by Mrs. Szul, and did not intervene as complainants. ³ Their testimony was presented pursuant to the 'other females similarly situated' language of Mrs. Szul's amended complaint.

The Commission concluded as a matter of law that the district's maternity leave policy was discriminatory in requiring termination of employment 3 1/2 months before predicted birth, and in assertedly not making full time reemployment available when affected employes are physically able to resume their duties. As noted, the Commission ordered the district to correct its maternity leave policy and to pay Mrs. Szul and the three additional teachers who testified at the hearing substantial sums for lost wages, accumulated sick leave, and for the loss of insurance and pay increment benefits.

Our review of an order of the Human Relations Commission is limited to determining whether it is in accordance with law, whether necessary findings of fact are supported by substantial evidence and whether the Commission abused its discretion. Tomlinson Agency v. Pennsylvania Human Relations Commission, 11 Pa.Cmwlth 227, 312 A.2d 118 (1973). The appellant district attacks the Commission's order as contrary to law as beyond the authority of the Commission.

The respondent school district argues that the portion of the order finding the maternity leave policy discriminatory is contrary to law because the policy was negotiated as part of the collective bargaining agreement between the district and the teachers' representative and was framed in accordance with what was then determined, in good faith, by the negotiators to be applicable law as to maternity policies. However, the law is that a collective bargaining provision fixing the obligation of employers inconsistent with the statutory rights of employes will not preclude the latter from pursuing those rights. Stollar v. Continental Can Company, 407 Pa. 264, 180 A.2d 71 (1962); Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A.2d 906 (1959). Moreover, the Freeport agreement itself contains the following:

'Nothing contained herein shall be construed to deny or restrict to any professional employee such rights as he may have under the Public School Code of 1949, as amended, or other applicable laws and regulations.'

The applicable law was understandably misapprehended by the parties to the labor agreement. The amendment to section 5(a), adding discrimination on the basis of sex as an unlawful activity ⁴ upon which this action is predicated, was effective well in advance of the formulation of the district's policy by the collective bargaining agreement. While it is true that section 5(a) as thus amended had not been the subject of judicial interpretation with respect to the subject of maternity leave when Freeport's promulgated, it has since been held to mean that pregnant women may not be treated differently from any other employe suffering under a physical disability.

The instant case, insofar as it involves prenatal terminations of active employment, is controlled in principle by Cerra when Freeport's policy was promulgated, it 450 Pa. 207, 299 A.2d 277 (1973), where our Supreme Court held that the dismissal of a school teacher for failure to resign at the end of the fifth month of her pregnancy violated section 5(a), writing:

'. . . Mrs. Cerra's contract was terminated absolutely, solely because of pregnancy. . . . There was no evidence that the quality of her services as a teacher was or would be affected as a result of the pregnancy. Male teachers, who might well be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treated. In short, Mrs. Cerra and other pregnant women are singled out and placed in a class to their disadvantage. They are discharged from their employment on the basis of a physical condition peculiar to their sex. This is sex discrimination pure and simple.' 450 Pa. at 213, 299 A.2d at 280.

Here, Mrs. Szul, Mrs. Harrison and Mrs. Ippolito, ⁵ in accordance with the district's policy, were forced on leave 3 1/2 months before the birth of their children and while they were able to continue their work. They and other pregnant employes were singled out to their disadvantage and their employment suspended on the basis of their sex and without regard for their fitness for continued service and employment.

It is worth noting that the United States Supreme Court in Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), held that the policies of two school boards mandating respectively four and five months' prenatal leaves violated the due process rights of female teachers. Similar policies as to pregnant employes were struck down in Green v. Waterford Board of Education, 473 F.2d 629 (2d Cir. 1973), and Wetzel v. Liberty Mutual Insurance Company, 372 F.Supp. 1146 (W.D.Pa.1974).

Passing now to the Freeport Area...